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TMI Blog2017 (11) TMI 1819X X X X Extracts X X X X X X X X Extracts X X X X ..... so raised cross objection against the same order of the Ld.CIT(A) supra, on the reopening of the assessment. 2. The Revenue has raised several grounds in its appeal; however the crux of the issue is that the Ld.CIT(A) has erred in allowing the deduction U/s. 80IB(10) of the Act, amounting to Rs. 4,99,11,555/- following the order of the Hon'ble High Court in the assessee's own case on the identical issue for the assessment year 2007-08 when the Revenue is in appeal before the Hon'ble Apex Court. 3. The assessee has raised three cross objections in her appeal however the crux of the issue is that the reopening of the assessment U/s.147 of the Act is bad in law. 4. The brief facts of the case are that the assessee is an individual engage ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iary, granted relief to the assessee. The relevant portion of the order of the Ld.CIT(A) is extracted herein below for reference:- "33. At the time the project was designed, it was done as a composite project at the proposed site at S.No. 486/1 and 482. The plots were sub-divided from these composite plots, subplots no. '8' to 'H' being subdivision of plot no. 482 and subplots no.'B' to 'H' being subdivision of plot no. 486/1. Therefore, at no time did the assessee consider each plot as a separate project but the entire development was considered as a single project and developed as such. 34. The "Development Control Rules" for Chennai Metropolitan Area regulates the construction within Chennai Metro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in detail supra, in the case of the appellant for the AY. 2007 - 08, the AO had allowed the claim u/s 80 IB (10) in favour of the assessee. Since there is no change in the relevant set of facts in the present AY. 2008 - 09 as compared to the AY. 2007-08, the principle of consistency and precedence needs to be followed. 38. Reliance is placed on the decision of the Supreme Court in New Jehangir Vakil Mills Co. Ltd. v Commissioner of Income Tax [1963]49 ITR 137 (SC), where the Supreme Court held that though the principle of 'res judicata' does not apply to taxation matters, however where there has been no change in facts, on grounds of consistency, the position cannot be changed in a subsequent year. A similar view was also held b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the plot should be a vacant area of one acre. Even if there were other housing projects on the land but the entire plot of land was at least one acre, the deduction was available even if the particular construction for which deduction was claimed was not built of the entire one acre of land. Applying this decision to the facts of the assessee's case, even if it is assumed that each plot B to 0 was a separate project, the fact that all the projects were constructed on the total land area of more than one acre should be considered and deduction should be allowed to the assessee. 40.A similar view has been taken in the assessee's own case for the Assessment Year 2007 - 08, wherein the assessee has been allowed the deduction u/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on u/s.80-IB(10) could not be denied. 43. Reliance is placed on the orders of the Hon'ble Madras High Court and the Hon'ble Income tax Appellate Tribunal in the assessee's own case for the A.Y 2007-08, wherein it has been held that the assessee was entitled to the deduction u/s 80-IB(10) as she had satisfied all the conditions specified in the said section. Hence, it is noticed that the issue has reached finality and the project of the assessee has been held to be eligible for deduction u/s.80-IB(10). 44. The Bombay High Court in Commissioner of Income tax v Paul 8rothers [1995]216 ITR 548 (Nagpur) held in the context of Section 80HH and 80 J that there was no provision either in Section 80HH or 80J for withdrawal of speci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idered opinion that the appellant had fulfilled all the necessary prerequisites to claim deduction u/s 80IB(10) of the Act." 7. Before us the Ld.DR argued in support of the order of the Ld.AO, while as the Ld.AR relied on the order of the Ld.CIT(A). 8. We have heard the rival submissions and carefully perused the materials available on record. It is pertinent to mention that on the same project the Ld.CIT(A) as well as the Tribunal has decided the appeal in favour of the assessee for the earlier assessment year 2007-08. Moreover for the relevant assessment year, the Ld.CIT(A) has also made a finding that the project was designed as a composite project at the proposed site at survey no.486/1 & 482. The project of the assessee was also in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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